SF 2131

as introduced - 84th Legislature (2005 - 2006) Posted on 12/15/2009 12:00am

A bill for an act
relating to civil actions; reforming medical
malpractice liability; proposing coding for new law in
Minnesota Statutes, chapters 147; 604.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin [147.37] BEST PRACTICE GUIDELINES; USE IN
MEDICAL MALPRACTICE CASES.
new text end

new text begin (a) In an action against a provider for malpractice, error,
mistake, or failure to cure, whether based in contract or tort,
adherence to a best practice guideline approved by either a
recognized specialty organization or an organization established
for the purpose of developing community-based clinical practice
guidelines is an absolute defense against an allegation that the
provider did not comply with accepted standards of practice in
the community. This paragraph does not apply if the best
practice guideline authorizes or recommends denial of treatment,
food, or fluids necessary to sustain life on the basis of the
patient's age or expected length of life or the patient's
present or predicted disability, degree of medical dependency,
or quality of life.
new text end

new text begin (b) Evidence of a departure from a best practice guideline
is admissible only on the issue of whether the provider is
entitled to an absolute defense under paragraph (a).
new text end

new text begin (c) Nothing in this section changes the standard or burden
of proof in an action alleging a delay in diagnosis, a
misdiagnosis, inappropriate application of a best practice
guideline, failure to obtain informed consent, battery or other
intentional tort, or product liability.
new text end

Sec. 2.

new text begin [604.111] HEALTH CARE PROVIDER ACTIONS; LIMITS ON
DAMAGES AND ATTORNEY FEES.
new text end

new text begin Subdivision 1. new text end

new text begin Definitions. new text end

new text begin (a) For the purposes of this
section, the terms in paragraphs (b) to (d) have the meanings
given them.
new text end

new text begin (b) "Economic loss" means all harm for which damages are
recoverable, other than noneconomic losses.
new text end

new text begin (c) "Health care provider" has the meaning given in section
541.076, paragraph (a), except that health care provider also
includes a physician assistant registered under chapter 147A and
ambulance services, medical directors, and personnel regulated
under chapter 144E.
new text end

new text begin (d) "Noneconomic loss" means all nonpecuniary harm for
which damages are recoverable, including, but not limited to,
pain, disability, disfigurement, embarrassment, emotional
distress, and loss of consortium.
new text end

new text begin Subd. 2. new text end

new text begin Limitation. new text end

new text begin (a) In an action for injury or
death against a health care provider alleging malpractice,
error, mistake, or failure to cure, whether based in contract or
tort, the amount of damages awarded for noneconomic losses must
not exceed $250,000, regardless of the number of parties against
whom the action is brought or the number of separate claims or
actions brought with respect to the same occurrence.
new text end

new text begin (b) The limitation imposed by this subdivision must not be
disclosed to the trier of fact by any person at trial.
new text end

new text begin Subd. 3. new text end

new text begin Findings. new text end

new text begin (a) A court in an action tried
without a jury shall make a finding as to noneconomic loss
without regard to the limit under subdivision 2. If noneconomic
loss in excess of the limit is found, the court shall make any
reduction required under this section and shall award as damages
for noneconomic loss the lesser of the reduced amount or the
limit.
new text end

new text begin (b) If an action is before a jury, the jury shall make a
finding as to noneconomic loss without regard to the limit under
subdivision 2. If the jury finds that noneconomic loss exceeds
the limit, the court shall make any reduction required under
this section and shall award as damages for noneconomic loss the
lesser of the reduced amount or the limit.
new text end

new text begin Subd. 4. new text end

new text begin Punitive damages limited. new text end

new text begin (a) Punitive,
exemplary, and similar damages recoverable against a health care
provider in a cause of action described in subdivision 2 must
not exceed $250,000. The jury must not be informed of this
limitation.
new text end

new text begin (b) All damages described in paragraph (a) must be paid
directly to the Minnesota Comprehensive Health Association
created under section 62E.10, subdivision 1, to be used for the
purpose of reducing its assessments on its members.
new text end

new text begin (c) Notwithstanding paragraph (a), a private nonprofit
hospital licensed under sections 144.50 to 144.56 is not liable
for punitive, exemplary, or similar damages, in an action
described in subdivision 2.
new text end

new text begin Subd. 5. new text end

new text begin Excessive attorney fees prohibited. new text end

new text begin (a)
Attorney fees payable by a plaintiff in any cause of action
referred to in subdivision 2 must not exceed the following
percentage of damages:
new text end

new text begin (1) 40 percent of the first $50,000;
new text end

new text begin (2) 33-1/3 percent of the next $50,000;
new text end

new text begin (3) 25 percent of the next $500,000; plus
new text end

new text begin (4) 15 percent of that portion of damages that exceeds
$600,000.
new text end

new text begin (b) This subdivision applies to the net damages actually
recovered by that plaintiff under the cause of action, whether
through settlement, alternative dispute resolution, court
judgment, or otherwise. "Net damages actually recovered" means
the net sum recovered after deducting any disbursements or costs
incurred in connection with prosecution or settlement of the
claim, including all costs paid or advanced by any person.
Costs of health care incurred by the plaintiff and the
attorney's office overhead costs or charges for legal services
are not deductible disbursements of costs for such purpose.
new text end

new text begin (c) A fee agreement that violates this subdivision is void
and unenforceable, to the extent of the violation.
new text end

new text begin Subd. 6. new text end

new text begin Intentional discriminatory denial of treatment.
new text end

new text begin Except for the purposes of subdivision 5, an action described in
subdivision 2 shall not be construed to include any claim in a
civil action that is based solely on intentional denial of
medical treatment that a patient is otherwise qualified to
receive, against the wishes of a patient, or, if the patient is
incompetent, against the wishes of the patient's guardian, on
the basis of the patient's present or predicted age, disability,
degree of medical dependency, or quality of life.
new text end

Sec. 3. new text begin EFFECTIVE DATE.
new text end

new text begin Sections 1 and 2 are effective August 1, 2005, and apply to
causes of actions arising from incidents occurring on or after
that date.
new text end